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EAT split 2-2 on application of 10% uplift to discrimination awards

In Chawla v Hewlett Packard Limited (UKEAT/0280/13/BA &UKEAT/0247/12/BA)Slade J has expressed her view that the 10% uplift to general damages which applies in the civil courts does not apply to Employment Tribunal awards for injury to feelings or personal injury.

The issue has now been considered by four different divisions of the EAT in just six months: two finding that the 10% uplift does apply and two disagreeing and holding that it does not apply.

Background

The Court of Appeal declared in Simmons v Castle [2012] EWCA Civ 1039 that as of 1 April 2013, the level of general damages in all civil claims for mental distress would be increased by ten per cent. This was to compensate for a change in legislation which had removed the right for successful claimants to recover uplifts on conditional fee agreements.

As a result, the President of the Employment Tribunals issued Guidance on 13 March 2014 which stated that the Simmons v Castle uplift would apply to injury to feelings awards in discrimination claims. This position was supported by the EAT’s subsequent decisions in The Cadogan Hotel Partners Ltd v Ms Ozog (UKEAT/0001/14/DM) (HHJ Eady QC) and The Sash Window Workshop Ltd v King (UKEAT/0058/14/MC) (Simler J).

That position was challenged in De Souza v Vinci Construction UK Limited (UKEAT/0328/14/KN) in which HHJ Serota QC accepted submissions that Ozog and King should not be followed.

Argument

The Claimant, Mr Chawla, appealed against both the liability and remedy judgments of the Tribunal Chawla v Hewlett Packard [2013] EqLR 298. His grounds of appeal included the Tribunal’s failure to award a 10% uplift on his personal injury and injury to feelings awards.

In reply, the Respondent argued that the Simmons v Castle 10% uplift was specifically provided as a quid pro quo for the changes made to litigation funding following the Jackson Report into litigation costs. As litigants in the employment tribunal had never been affected by these reforms, it was argued that the rationale for the 10% uplift could not apply to Tribunal awards and the appeal should be dismissed.

EAT Judgment

Slade J accepted the Respondent’s submissions and rejected the appeal in relation to the 10% uplift. She preferred the decision of HHJ Serota QC in De Souza (a case in which Thomas Cordrey also appeared for the successful Respondent) to the decisions of different divisions of the EAT in Ozog and King.

Court of Appeal

The contrary judgments of the EAT on this issue will be resolved later this year by the Court of Appeal, permission to appeal having been given in the De Souza case.

Thomas Cordrey, instructed by Adrian Crawford and Jennie Atefi of Kingsley Napley LLP, acted on behalf of the Respondent, Hewlett Packard Ltd. To read the full judgment, please click here.